Joseph Goldstein explores the relationship between psychoanalysis and jurisprudence in his 1968 paper. He argues that to apply psychoanalysis to law, it is important to define the scope of both fields and recognize their methodological differences. While psychoanalysis focuses on a theory of subjectivity, law requires a theory of the legal subject. Goldstein examines how incorporating insights about the unconscious, a constitutive part of the subject, could impact specific legal cases in areas like family law and criminal law. However, challenges remained around how to apply psychoanalytic concepts without direct clinical data from patients. Goldstein's work was pioneering in exploring how psychoanalysis could inform the legal system and curriculum in addressing issues like defining parenthood in child custody disputes.

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LEGAL THEORY
ON PSYCHOANALYTIC JURISPRUDENCE
Joseph Goldstein (1968). ‘Psychoanalysis and Jurisprudence,’ The Yale Law Journal,
Vol. 77, No. 6, pp. 1053-1077.
What is the relationship between psychoanalysis and jurisprudence?
That is the question to which Joseph Goldstein, the Justus S. Hotchkiss Professor of
Law at Yale, tried to provide an answer to as early as 1968 in the paper cited above.
An earlier version of Goldstein’s paper was delivered at the Hampstead Child
Therapy Clinic in London in 1965. Some of these ideas were also rehearsed in a
conference on the psychoanalysis of law at Detroit and before a gathering of
psychoanalysts at Stockbridge in 1967.
Goldstein also mentions his collaboration with and the support received from Jay
Katz of the Yale Law School and Alan Dershowitz of the Harvard Law School. Their
collaboration led to the publication of a book on the relationship between
psychoanalysis, psychiatry, and the law (Katz et al, 1967).
Goldstein begins with a definition of the law and psychoanalysis and then explains
the terms and conditions in which these areas can interact within the theory and
practice of psychoanalytic jurisprudence.

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In order to do this, Goldstein argues, it is important to define the scope of these areas
before attempting to apply psychoanalysis in the law.
These theoretical applications and clinical insights are more likely to be successful in
actual cases in the law if we recognize the methodology that is intrinsic to
psychoanalysis.
This methodology is related to the clinical technique called ‘free-association.’
It is therefore important not to proceed only on a thematic resemblance between
concepts in psychoanalysis and jurisprudence without realizing the difference
between theory and practice in resolving specific cases in the law.
So, for instance, the scope of a theoretical endeavour is usually more than in a given
practice since only those aspects of a theory that are ‘relevant’ to a given case are activated in
practice.
In other words, theory is related to the main set of attributes that are needed to
explain social or legal phenomena, but an application is only related to a sub-set of
these attributes.
Defining the ‘scope’ of the application of a theory, or a theory in the context of a
practice, is about knowing when to invoke the main set and when to invoke the subset of
attributes in any given theory.
In order to apply psychoanalysis to the law, legal theory, or jurisprudence, we must
keep in mind that what is at stake in doing so theoretically is something altogether
different from what is required in a specific case.
It is possible to apply psychoanalysis to a specific case only if the patient’s free-
associations to a particular concept, idea, or event are available since there is an
important difference – as literary critics know - between the ‘denotative’ meaning of
an object in theory and its ‘connotative’ meaning in terms of the patient’s
experiences, life, or world-view.
If that is not the case, there should at least be some corroborative evidence to justify
the application of the theory based on what we or the analysts known about the
parties to a dispute.
Joseph Goldstein defines the law then as ‘a body of substantive decisions and as a
process for decision making’ in the judicial resolution of actual (i.e. specific) cases.
Since this body of decisions and process of arriving at decisions presuppose a theory
of human nature, psychoanalysis becomes a potential source from which a legal
theorist or jurist can import ideas.

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In other words, the law requires a theory of the legal subject in order to both legislate
and adjudicate in the legal system (Caudill, 1993).
This theory of the legal subject can be either ‘intrinsic’ to the common law or it can
be developed in relation to a theory of subjectivity. In practice both these approaches
are important and useful.
The common law serves as a source for a theory of the subject but it is itself
characterized by gaps (Caudill, 1992).
So there is a need to seek a theory of subjectivity elsewhere in attempts to fill in these
gaps that constitute, as Peter Goodrich puts it, the ‘law’s unconscious’ (Goodrich,
1995).
Since psychoanalysis is mainly preoccupied with a theory of subjectivity, it becomes
an attractive source for thinking about the subject of the law.
Another reason for doing so is that psychoanalysts like Sigmund Freud and Jacques
Lacan are themselves interested in the law (Caudill, 1997a; Caudill, 1997b).
The main wager in psychoanalytic theories of subjectivity is to relate how the subject
is constituted through the axes of desire and the law in the oedipal matrix.
That is, the analytic theory of human nature is based on the juridical notion of the
subject. This has been pointed out by a number of theorists on the psychoanalysis of
law.
So it is inevitable that sooner or later theorists of the law and theorists of the
unconscious will want to exchange ideas and learn from each other.
The term that Goldstein invokes for this mutual attraction between psychoanalysis
and the law is ‘congruence.’
The object of this congruence is their mutual ‘concern for man, his mind, his
behaviour, and his environment.’
What Goldstein does in this paper then is to explore this congruence between
psychoanalysis and the law.
While Goldstein explores the concept of the law, he also finds room to touch upon
particular cases in which the judiciary and the legislature have had to grapple with the
existence of the unconscious as a constitutive feature of the legal subject.
In other words, this amounts to asking how things will change when the legal
system or the process of legal adjudication takes cognizance of the unconscious in

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specific acts of legislation and adjudication rather than only within theories of
legislation and adjudication.
The entire discourse of psychoanalytic jurisprudence then amounts to the attempt to
answer precisely this question. Needless to say, what form of psychoanalysis is
invoked will affect how we answer this question.
The only assumption that is common to these attempts is that all forms of
psychoanalysis at least subscribe to a theory of the unconscious even though they
may differ in terms of what they think its constitutive features might be in the
analysis of any given theory of the legal subject.
Joseph Goldstein is mainly dependent on the work of psychoanalysts like Sigmund
Freud and Anna Freud and on the work of Heinz Hartmann and Ernst Kris from
American ego-psychology since he is working within a model of psychological
‘adaptation’ to an external reality (like the legal system itself).
But his insights are relevant, I argue in this essay, for anybody who wants to explore
the pioneering attempts made to incorporate psychoanalysis into the legal
curriculum in American law schools, the legal system, and in how the American
judiciary and legislature thought about the insights provided by psychoanalysis.
The main problem in terms of methodology for the legislature and the judiciary in
incorporating psychoanalysis was the fact that the existence of the unconscious as
the constitutive feature of the legal subject was seen as a general feature for all
subjects.
So it was not clear to the legal authorities how - in the absence of clinical data in terms of
free-associations that is used in therapeutic work – psychoanalysis or analytic insights
can be used in the context of actual cases involving problems in family law like
child-custody cases, divorce, and juvenile delinquency.
What was really at stake in such cases was to find a legal definition of parenthood
especially when parents and grand-parents get involved in making their own claims
about custodial matters.
How will the courts determine what is in the best interests of children who are affected by
such situations?
One way of resolving this problem when cases went to trial was to summon
psychiatric experts. But this problem was not reducible to what psychoanalysts and
psychiatrists had to say because there would be value differences between parents
and grand-parents in any given case.

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This difference in values was not only because they belonged to different
generations, but also because they may be situated in different parts of the country
and therefore subscribe to different mores.
So what would the relevant criteria be in deciding these cases?
The significance of this question was to determine the answer by applying theory in
the context of specific cases rather than invoke it as a form of meta-psychology that
is difficult to apply in practice.
So it was in the context of family law and criminal law that the first set of attempts
was made to apply psychoanalysis in the context of the law and the legal system.
If the role played by the unconscious was not obvious in family law and criminal
law, it will obviously be much more difficult to delineate it in the more technical
cases that would come under the category of law and economics.
That is why the examples used in papers like this relate mainly to family law and the
criminal law.
Incidentally, it is worth mentioning the libidinal economy of such forms of jurisprudence
as is the case with the work of another pioneer in this area – Franz Rudolf
Bienenfeld.
In a Preface that he wrote to the work of the psychoanalytic jurist Albert A.
Ehrenzweig, Bienenfeld points out that psychoanalysis made its entry into legal
theory mainly in the context of criminal law and in studies on guilt.
It was also interested in relating how oedipal forms of guilt relate to the existence or
lack of existence of guilt in adult criminals.
The main development here is in analysing and explaining the difference between
the ‘fact of guilt’ and the unconscious ‘sense of guilt’ because of the subject’s
inability to resolve the Oedipus complex in childhood.
This is a theme that Goldstein takes up in this paper as well in cases relating to the
‘flight of the subject’ from the locus in which he might have experienced guilt or
committed a crime.
Goldstein advices caution in such matters because as somebody ‘psychoanalytically-
informed’ he understands the difference between the fact of guilt and the sense of guilt that
the neurotic subject might be prone to.
So flight from the scene of crime is not necessarily proof of guilt as understood in
criminal law.

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Neurotic subjects, for instance, experience guilt for crimes that had nothing
whatsoever to do with them in the empirical sense of the term, but merely because
they have encountered a report of such crimes in the news-media.
That is why those who conduct exams in the news-media during criminal
investigations must be aware of such neurotic phenomena.
In neurotic subjects the excessive guilt that they suffer from is waiting to seek
expression in acts committed by others.
It is not related to these acts in the empirical sense at all. Any act that can subsume the
excess guilt will provide relief to the neurotic subject.
There are also instances in the analytic literature in which criminal acts are
performed because the criminal is guilty before committing a specific act and not
because or after he committed a specific act.
While we take the difference between the fact of guilt and the sense of guilt for
granted because psychoanalysis has taught us the difference, this distinction was not
always known to criminal investigators before the incorporation of psychoanalysis
into jurisprudence and methods of criminal investigation (Silving, 1960).
Sigmund Freud’s precursor in this area was none other than William Shakespeare.
Hamlet is not guilty because he actually killed his father, but because Claudius
enacted his unconscious fantasy to be done with his father (Freud, 1905-06).
Imagine a situation if criminal investigators kept placing articles in the news-media
in Denmark and then tracked Hamlet endlessly to see if there is some guilt in him.
Of course, there is a lot of guilt in Hamlet, but that is not because he suffers from the
‘fact’ of guilt but from a ‘sense’ of guilt.
This becomes obvious when he counsels his mother not to sleep with Claudius and
mourn his dead father with more sincerity than turned out to be the case.
That is why Hamlet points out that the food made for his father’s funeral was the
same food that was served to guests during his mother’s hasty marriage to Claudius.
So the point is not to deny psychoanalysis recognition for something that was
already known to Shakespeare’s Hamlet, but to recognize the role played by
psychoanalytic insights in the tool-kit of contemporary investigators in an area
called forensic psychiatry.
In addition to family law and criminal law, psychoanalysis is also useful in the
context of ‘social law.’

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In Franz Bienenfeld’s description, the social law is understood as ‘prevailing
between mother and child, the criminal law involving father and child,
constitutional law governing husband and wife, and the law of contract between
siblings’ (Bienenfeld, 1965).
Bienenfeld’s point is not that these areas of the law are reducible to those elements of
the family and its relationships as described above; but that, in the first instance, it is
worth our while to explore these relations to find a place for psychoanalysis in the
theory and practice of the law.
That is what Joseph Goldstein wants as well. As Goldstein is keen to point out, there
are some interesting parallels between the approaches associated with those of
Sigmund Freud and Justice Oliver Wendell Homes Jr. (1881).
What they were both arguing was that certain phenomena cannot be explained only
through reason and logic; many things have to be understood in the locus of
experience. That is what case studies in psychoanalysis and the law have to teach us.
So whether it is the legal system or the individual patient whom we want to change
in directions that are healthier, it is important to simultaneously invoke stability and
change. Only then will we be able to forge a society that is ‘stable, vital, and viable.’
The goal of psychoanalysis in jurisprudence then is to provide a theory of the subject
that will make it possible for us to differentiate between those who will live by the
law, shape the law, or wind up breaking the law.
REFERENCES
Bienenfeld, Franz Rudolf (1965). ‘Prolegomena to a Psychoanalysis of Law and
Justice: An Introduction,’ California Law Review, Vol. 53, No. 4, pp. 957-959.
Caudill, David S. (1992). ‘Lacan and Legal Language: Meaning in the Gaps; Gaps in
the Meanings,’ Law and Critique, Vol. 3, No. 2, pp. 169-210.
Caudill, David S. (1993). ‘Pierre Schlag’s ‘The Problem of the Subject”: Law’s Need
for an Analyst,’ Cardozo Law Review, Vol. 15, No. 3, pp. 707-732.
Caudill, David S. (1997a). Lacan and the Subject of Law: Toward a Psychoanalytic Legal
Theory (Atlantic Heights, NJ: Humanities Press International).
Caudill, David S. (1997b). ‘Identifying Law’s Unconscious: Disciplinary and
Rhetorical Contexts,’ Washington and Lee Law Review, Vol. 54, No. 3, pp. 1075-1090.

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Freud, Sigmund (1905-06). ‘Some Psychopathic Characters on Stage,’ Writing and
Psychoanalysis: A Reader, edited by John Lechte (London and New York: Arnold), pp.
117-122.
Goodrich, Peter (1995). Oedipus Lex: Psychoanalysis, History, Law (Berkeley and Los
Angeles: University of California Press), passim.
Holmes Jr., Oliver Wendell (1881). ‘Lecture I: Early Forms of Liability,’ The Common
Law (Stilwell: Digireads.com Publishing, 2005), pp. 3-17.
Katz et al, Jay (1967). Psychoanalysis, Psychiatry, and Law (New York: The Free Press).
Silving, Helen (1960). ‘Psychoanalysis and the Criminal Law,’ Journal of Criminal Law
and Criminology, Vol. 51, No. 1, pp. 19-33.
SHIVA KUMAR SRINIVASAN